M. Rajeswara Rao, Vs Sri Venkateswara University Tirupathi

M. RAJESWARA RAO,, S/O LATE SANGEETHA RAO AGED 62 YEARS, RETIRED PROFESSOR,SV UNIVERSITY, TIRUPATHI,R/O 304, OM SAI PEARLS, NELADRI NAGAR,BANGLORE-560100

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K. VIJAYA KUMARI, W/O. LATE M. RAJESWARA RAO, AGED 70 YEARS, RETD. EMPLOYEE, R/O. FLAT NO. 304, OM SAI PEARLS, NEELADRI NAGAR, ELECTRONIC CITY, BANGALORE. PETITIONER NO.2 BROUGHT ON RECORD AS LR TO THE DECEASED 1ST PETITIONER, AS PER COURT ORDER DATED 10.07.2025 VIDE I.A.NO.1 OF 2025 IN WP NO.8440 OF 2018.

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...PETITIONER(S)

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AND

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SRI VENKATESWARA UNIVERSITY TIRUPATHI, CHITTOOR DISTRICT REP. BY ITS REGISTRAR

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THE DISTRICT AUDIT OFFICER, STATE AUDIT, SV UNIVERSITY,TIRUPATHI, CHITTOOR DISTRICT

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...RESPONDENT(S):

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W.P.No.8440 of 2018

Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to to issue a Writ, Order or direction, more particularly one in the nature of Writ of Mandamus, declaring the impugned Proceedings Nc.EII(1)/MRR/ 2017, dt.12.07.2017, issued by the 1st Respondent, in so far as it relates to recovery of subsistence allowance paid to the Petitioner for-242 days i.e., suspension period from 21.07.2013 to 19.03.2014, treating as Leave on Loss of Pay (LLP), as arbitrary, discriminatory and illegal, and consequently direct the 1st Respondent to release forthwith the balance salary for the period of his suspension from 17.08.2012 to 20.07.2013 and two annual increments, sanctioned to the Petitioner vide impugned proceedings dt.12.07.2017, without reference to Standing Board of Enquiry Committee, and with all other consequential benefits, monetary or otherwise and pass

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IA NO: 1 OF 2018

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant interim directions, directing the 1st Respondent to release payment of balance salary for the suspension period from 17.08.2012 to 20.07.2013, and two annual increments, sanctioned to the Petitioner vide impugned Proceedings No.E-II(1)/MRR/ 2017, dt.12.07.2017 issued by the 1st Respondent, pending disposal of the Writ Petition.

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IA NO: 2 OF 2018

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to Vacate the interim orders dated 15.03.2018 passed in LA.No.1 of 2018 in W.P.No.8440 of 2018 and to pass

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IA NO: 1 OF 2021

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased Pleased to grant interim directions directing 1st respondent to forthwith place, before the Executive Council of Respondent-University under FR.54-B(3) regarding regularization of petitioner's suspension period from 17-08-2012 to 19-03-2014 pending disposal of the main writ petition

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IA NO: 1 OF 2025

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to bring petitioner herein on record Representattive as of Legal late M.Rajeswara Rao in WP.No.8440/2018 and as as well in Interlocutory Applications and pass

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Counsel for the Petitioner(S):

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1.L R JAYA PRAKASH

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Counsel for the Respondent(S):

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1.GP FOR FINANCE PLANNING (AP)

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2.RAMESH BABU TALLURI SC For S.V.UNIVERSITY,TIRUPATI

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The Court made the following:

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W.P.No.8440 of 2018

ORDER:

This Writ Petition came to be filed under Article 226 of the

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Constitution of India, seeking the following prayer:

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“to issue a Writ, Order or direction, more particularly one in the nature of Writ of Mandamus, declaring the impugned Proceedings Nc.E-II(1)/MRR/ 2017, dt.12.07.2017, issued by the 1st Respondent, in so far as it relates to recovery of subsistence allowance paid to the Petitioner for-242 days i.e., suspension period from 21.07.2013 to 19.03.2014, treating as Leave on Loss of Pay (LLP), as arbitrary, discriminatory and illegal, and consequently direct the 1st Respondent to release forthwith the balance salary for the period of his suspension from 17.08.2012 to 20.07.2013 and two annual increments, sanctioned to the Petitioner vide impugned proceedings dt.12.07.2017, without reference to Standing Board of Enquiry Committee, and with all other consequential benefits, monetary or otherwise and pass”

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The petitioner herein was initially appointed as a lecturer (assistant professor), department of Zoology in the 1^st respondent university on 23.03.1981 and subsequently, he got promoted to the cadre of Reader (Associate Professor) under the Selection Grade category with effect from 10.11.1989 and later he was promoted/re-designated to the cadre of professor, under Career Advancement Scheme (CAS) with effect from 27.07.1998. Thereafter, he was appointed as Head, Department of Zoology on 14.10.2005 and continued in the said post till 06.11.2007. The

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petitioner retired from service on attaining the age of superannuation on 30.04.2014 as per the retirement notice issued by the 1^st respondent vide proceedings dated 26.07.2013.

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The case of the petitioner is that while he was working in the 1^st respondent university, he was kept under suspension vide proceedings dated 23.08.2012; vide proceedings dated 28.01.2013 of the Executive Council, the petitioner was sanctioned subsistence allowance at a rate of 50% of his pay and allowances with effect from 17.08.2012 for a period of three months and at a rate of 75% beyond three months. The annual increments payable to the petitioner were not sanctioned from 01.07.2012 and 01.07.2013. Thereafter, vide proceedings dated 14.03.2014 of the Vice Chancellor, the petitioner’s suspension was revoked and he reported to duty on 20.03.2014. Subsequent to the petitioner’s retirement on 30.04.2014, vide proceedings dated 19.09.2014 of the Vice Chancellor the petitioner was sanctioned provisional pension with effect from 01.05.2014, pending criminal case in C.C.No.68 of 2015.

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After due trial, the Court of IV Additional Judicial Magistrate of First Class, Chittoor concluded that the petitioner and his wife are not guilty for the offences alleged and accordingly, vide judgment dated 20.02.2017, they were acquitted and the same attained finality. Duly enclosing a copy of the said judgment, the petitioner submitted a representation on 25.04.2017 to the 1^st respondent requesting to sanction

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W.P.No.8440 of 2018

pension, gratuity and other retirement benefits, in addition to payment of remaining salary, after deducting subsistence allowance paid to the petitioner, treating the period of suspension as the period spent on duty and to sanction annual increments etc., due to the petitioner. As no steps were initiated by the 1^st respondent, the petitioner was constrained to file W.P.No.18625 of 2017 before this Court, wherein, this Court passed an interim order on 20.07.2017 directing the 1^st respondent to sanction all the retirement benefits to the petitioner within one (1) week from the date of receipt of the said order. Pursuant to the said direction, the 1^st respondent, vide impugned proceedings dated 12.07.2017 informed the petitioner that he would be paid the leave salary for the period which is treated as Earned Leave and Half Pay Leave as per rules in vogue, deducting the subsistence allowance already paid for the said period; further, the subsistence allowance already paid shall be recovered for the period which is treated as L.L.P. Aggrieved by the same, the petitioner has filed the present writ petition. Pending the same, as the petitioner died, his wife was impleaded as petitioner No.2

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The 1^st respondent filed a detailed counter affidavit admitting the facts as stated by the petitioner that led to filing of the present petition and further stated that the petitioner was placed under suspension for a period of 580 days i.e., from 17.08.2012 to 19.03.2014; he was sanctioned annual increments upto July, 2011 and in order to sanction

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superannuation pension and other retirement benefits, his suspension period of 580 need to be regularized and annual increments due on July, 2012 and July, 2013 need to be sanctioned. Meanwhile, the petitioner, vide letter dated 07.07.2017, requested to sanction the pending increments, superannuation pension and other monetary benefits treating the period of his suspension as leave to which he was eligible. Considering the request of the petitioner and as per the instructions

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issued by the Government, the petitioner’s suspension period has been regularized as follows:

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	From	To	Number of days
Period of	17.08.2012	19.03.2014	580 days
suspension joined duty after reins	tatement on 20.03.2014
Earned Leave	17.08.2012	22.11.2012	98 days
Half Pay Leave	23.11.2012	20.07.2013	240 days
L.L.P.	21.07.2013	19.03.2014	242 days

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Rejoined duty after reinstatement on 20.03.2014

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Further, the petitioner was sanctioned annual increments that were

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due, as follows:

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PAY	PERIOD
Rs.55350 + 10000	As on 01.07.2011
Rs.37400-67000 + AGP 10000
Rs.57310 + 10000	01.07.2012
	(Under suspension w.e.f. 17.08.2012)
Rs.59330 + 10000	01.07.2013*
	(Reinstated into service w.e.f. 20.03.2014)

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*Notional upto 19.03.2014 Monetary benefit from 20.03.2014 Retired from University service on 30.04.2014

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Heard Sri. L.R. Jaya Prakash, learned counsel for the petitioner and Sri. T. Ramesh Babu, learned Standing Counsel for the 1^st respondent.

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Perused the entire material available on record. The facts of the writ petition are not in dispute. It can be seen from the counter affidavit that the petitioner was paid superannuation pension arrears of Rs.8,76,644/- for the period from 01.05.2014 to 31.07.2017 duly deducting Rs.1,50,000/- towards Tax Deducted at Source (TDS) by adjusting Provisional Pension already paid and thereafter, he is being paid Superannuation Pension regularly. The petitioner was paid gratuity amount of Rs.8,00,000/- after deducting Rs.21,000/- towards various dues and commutation of pension of Rs.13,63,416/- which was credited to his account on 23.08.2017. Admittedly, the petitioner was placed under suspension for 582 days i.e. from 17.08.2012 to 19.03.2014 and during the said period, he was having 98 days of earned leave and 240 days of half pay leaves in his credit. As no leave was available for the remaining period of 242 days, the same was treated as Leave on Loss of Pay (LLP);

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hence, the subsistence allowances already paid to the petitioner for the period treated as LLP was ordered to be recovered.

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It can be observed that the 1st respondent has already paid all the remaining benefits to the petitioner in accordance with the proviso under FR 54-B(7) by converting the period of suspension into leave of any kind due and admissible to the petitioner.

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In so far as the contention of the respondents that the petitioner was paid in excess and that the same has to be recovered is concerned, time and again the Hon’ble Supreme Court of India held that if the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous, such excess payments of emoluments or allowances are not recoverable. It further held that such relief against the recovery is not because of any right of the employee but in equity, exercising judicial discretion to provide relief to the employee from the hardship that will be caused if the recovery is ordered.

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In State of Punjab v. Rafiq Masih¹ , the Apex Court examined

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the validity of an order passed by the State to recover the monetary gains

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1 (2015) 4 SCC 334

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wrongly extended to the beneficiary employees in excess of their entitlements without any fault or misrepresentation at the behest of the recipient. The Court considered situations of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. It was held thus:

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“8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the Preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the employee concerned. If the effect of the recovery from the employee concerned would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.

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It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

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(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

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(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

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(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

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(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.”

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In view of the law laid down in the aforesaid judgment of the Hon’ble Apex Court, this Court is of the opinion that though an additional amount was paid erroneously, the same cannot be recovered from the petitioner on whatsoever grounds. Accordingly, this writ petition is allowed and the impugned proceedings dated 12.07.2017 issued by the 1^st respondent for recovery of subsistence allowance already paid to the petitioner for a period of 242 days is hereby set-aside. There shall be no order as to costs.

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Consequently, Miscellaneous Petitions, if any, pending in this Petition shall stand closed.

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_____________________ JUSTICE V.SUJATHA

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06.07.2026 Gss

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Whether the order is : Speaking Yes Reportable No

M. Rajeswara Rao, v. Sri Venkateswara University Tirupathi

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M. Rajeswara Rao, v. Sri Venkateswara University Tirupathi

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